AKBAYAN CITIZENS ACTION PARTY

(AKBAYAN), PAMBANSANG KATIPUNAN G.R. No. 170516

NG MGA SAMAHAN SA KANAYUNAN
(PKSK), ALLIANCE OF PROGRESSIVE Present:
LABOR (APL), VICENTE A. FABE, PUNO, C.J.,
ANGELITO R. MENDOZA, MANUEL P. QUISUMBING,
QUIAMBAO, ROSE BEATRIX CRUZ- YNARES-SANTIAGO,
ANGELES, CONG. LORENZO R. TANADA CARPIO,
III, CONG. MARIO JOYO AGUJA, CONG. AUSTRIA-MARTINEZ,
LORETA ANN P. ROSALES, CONG. ANA CORONA,
THERESIA HONTIVEROS-BARAQUEL, CARPIO MORALES,
AND CONG. EMMANUEL JOEL J. AZCUNA,
VILLANUEVA, TINGA,
Petitioners, CHICO-NAZARIO,
VELASCO, JR.,
- versus NACHURA,
REYES,
LEONARDO-DE CASTRO, &
THOMAS G. AQUINO, in his capacity as BRION, JJ.
Undersecretary of the Department of
Trade and Industry (DTI) and Chairman
and Chief Delegate of the Philippine
Coordinating Committee (PCC) for the
Japan-Philippines Economic Partnership
Agreement, EDSEL T. CUSTODIO, in his
capacity as Undersecretary of the
Department of Foreign Affairs (DFA) and
Co-Chair of the PCC for the JPEPA,
EDGARDO ABON, in his capacity as
Chairman of the Tariff Commission and
lead negotiator for Competition Policy and Promulgated:
Emergency Measures of the JPEPA,
MARGARITA SONGCO, in her capacity as
Assistant Director-General of the National July 16, 2008
Economic Development Authority (NEDA)
and lead negotiator for Trade in Services
and Cooperation of the JPEPA, MALOU
MONTERO, in her capacity as Foreign
Service Officer I, Office of the
Undersecretary for International
Economic Relations of the DFA and lead
negotiator for the General and Final
Provisions of the JPEPA, ERLINDA
ARCELLANA, in her capacity as Director
of the Board of Investments and lead
negotiator for Trade in Goods (General
Rules) of the JPEPA, RAQUEL ECHAGUE,
in her capacity as lead negotiator for
Rules of Origin of the JPEPA, GALLANT
SORIANO, in his official capacity as
Deputy Commissioner of the Bureau of
Customs and lead negotiator for Customs
Procedures and Paperless Trading of the
JPEPA, MA. LUISA GIGETTE IMPERIAL, in
her capacity as Director of the Bureau of
Local Employment of the Department of
Labor and Employment (DOLE) and lead
negotiator for Movement of Natural
Persons of the JPEPA, PASCUAL DE
GUZMAN, in his capacity as Director of
the Board of Investments and lead
negotiator for Investment of the JPEPA,
JESUS MOTOOMULL, in his capacity as
Director for the Bureau of Product
Standards of the DTI and lead negotiator
for Mutual Recognition of the JPEPA,
LOUIE CALVARIO, in his capacity as lead
negotiator for Intellectual Property of the
JPEPA, ELMER H. DORADO, in his
capacity as Officer-in-Charge of the
Government Procurement Policy Board
Technical Support Office, the government
agency that is leading the negotiations on
Government Procurement of the JPEPA,
RICARDO V. PARAS, in his capacity as
Chief State Counsel of the Department of
Justice (DOJ) and lead negotiator for
Dispute Avoidance and Settlement of the
JPEPA, ADONIS SULIT, in his capacity as
lead negotiator for the General and Final
Provisions of the JPEPA, EDUARDO R.
ERMITA, in his capacity as Executive
Secretary, and ALBERTO ROMULO, in his
capacity as Secretary of the DFA,*
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Petitioners non-government organizations, Congresspersons, citizens and taxpayers

seek via the present petition for mandamus and prohibition to obtain from respondents
the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA)
including the Philippine and Japanese offers submitted during the negotiation process
and all pertinent attachments and annexes thereto.

Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on
January 25, 2005 House Resolution No. 551 calling for an inquiry into the bilateral trade
agreements then being negotiated by the Philippine government, particularly the
JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the
House Special Committee on Globalization (the House Committee) into the negotiations
of the JPEPA.

In the course of its inquiry, the House Committee requested herein respondent
Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating
Committee created under Executive Order No. 213 (CREATION OF A PHILIPPINE
COORDINATING COMMITTEE TO STUDY THE FEASIBILITY OF THE JAPAN-
PHILIPPINES ECONOMIC PARTNERSHIP AGREEMENT)[1] to study and negotiate the
proposed JPEPA, and to furnish the Committee with a copy of the latest draft of the
JPEPA. Usec. Aquino did not heed the request, however.

Congressman Aguja later requested for the same document, but Usec. Aquino, by letter
of November 2, 2005, replied that the Congressman shall be provided with a copy
thereof once the negotiations are completed and as soon as a thorough legal review of
the proposed agreement has been conducted.

In a separate move, the House Committee, through

Congressman Herminio G. Teves, requested Executive Secretary Eduardo Ermita to
furnish it with all documents on the subject including the latest draft of the proposed
agreement, the requests and offers etc.[2] Acting on the request, Secretary Ermita, by
letter of June 23, 2005, wrote Congressman Teves as follows:

In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of]
F[oreign] A[ffairs] explains that the Committees request to be furnished
all documents on the JPEPA may be difficult to accomplish at this
time, since the proposed Agreement has been a work in progress for
about three years. A copy of the draft JPEPA will however be forwarded
to the Committee as soon as the text thereof is settled and complete.
(Emphasis supplied)
 Congressman Aguja also requested NEDA Director-General Romulo Neri and
Tariff Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the
latest text of the JPEPA.

Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff
Commission does not have a copy of the documents being requested, albeit he was
certain that Usec. Aquino would provide the Congressman with a copy once the
negotiation is completed. And by letter of July 18, 2005, NEDA Assistant Director-
General Margarita R. Songcoinformed the Congressman that his request addressed to
Director-General Neri had been forwarded to Usec. Aquino who would be in the best
position to respond to the request.

In its third hearing conducted on August 31, 2005, the House Committee resolved to
issue a subpoena for the most recent draft of the JPEPA, but the same was not pursued
because by Committee Chairman Congressman Teves information, then House
Speaker Jose de Venecia had requested him to hold in abeyance the issuance of the
subpoena until the President gives her consent to the disclosure of the documents.[3]

Amid speculations that the JPEPA might be signed by the Philippine government within
December 2005, the present petition was filed on December 9, 2005.[4] The agreement
was to be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo
and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the
President endorsed it to the Senate for its concurrence pursuant to Article VII, Section
21 of the Constitution. To date, the JPEPA is still being deliberated upon by the Senate.

The JPEPA, which will be the first bilateral free trade agreement to be entered into by
the Philippines with another country in the event the Senate grants its consent to it,
covers a broad range of topics which respondents enumerate as follows: trade in goods,
rules of origin, customs procedures, paperless trading, trade in services, investment,
intellectual property rights, government procurement, movement of natural persons,
cooperation, competition policy, mutual recognition, dispute avoidance and settlement,
improvement of the business environment, and general and final provisions.[5]
While the final text of the JPEPA has now been made accessible to the public
since September 11, 2006,[6] respondents do not dispute that, at the time the petition
was filed up to the filing of petitioners Reply when the JPEPA was still being negotiated
the initial drafts thereof were kept from public view.

Before delving on the substantive grounds relied upon by petitioners in support of the
petition, the Court finds it necessary to first resolve some material procedural issues.

Standing

For a petition for mandamus such as the one at bar to be given due course, it must be
instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board
or person which unlawfully excludes said party from the enjoyment of a legal
right.[7] Respondents deny that petitioners have such standing to sue. [I]n the interest of
a speedy and definitive resolution of the substantive issues raised, however,
respondents consider it sufficient to cite a portion of the ruling in Pimentel v. Office of
Executive Secretary[8] which emphasizes the need for a personal stake in the outcome
of the controversy on questions of standing.

In a petition anchored upon the right of the people to information on matters of public
concern, which is a public right by its very nature, petitioners need not show that they
have any legal or special interest in the result, it being sufficient to show that they are
citizens and, therefore, part of the general public which possesses the right.[9] As the
present petition is anchored on the right to information and petitioners are all suing in
their capacity as citizens and groups of citizens including petitioners-members of the
House of Representatives who additionally are suing in their capacity as such, the
standing of petitioners to file the present suit is grounded in jurisprudence.

Mootness

Considering, however, that [t]he principal relief petitioners are praying for is the
disclosure of the contents of the JPEPA prior to its finalization between the two States
parties,[10] public disclosure of the text of the JPEPA after its signing by the President,
during the pendency of the present petition, has been largely rendered moot and
academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now
stands cannot yet be considered as final and binding between the two States. Article
164 of the JPEPA itself provides that the agreement does not take effect immediately
upon the signing thereof. For it must still go through the procedures required by the laws
of each country for its entry into force, viz:

Article 164
Entry into Force

This Agreement shall enter into force on the thirtieth day after the date on
which the Governments of the Parties exchange diplomatic notes
informing each other that their respective legal procedures necessary
for entry into force of this Agreement have been completed. It shall
remain in force unless terminated as provided for in Article
165.[11] (Emphasis supplied)

President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of
the legal procedures which must be met prior to the agreements entry into force.

The text of the JPEPA having then been made accessible to the public, the petition has
become moot and academic to the extent that it seeks the disclosure of the full text
thereof.

The petition is not entirely moot, however, because petitioners seek to obtain, not
merely the text of the JPEPA, but also the Philippine and Japanese offers in the course
of the negotiations.[12]

A discussion of the substantive issues, insofar as they impinge on petitioners demand

for access to the Philippine and Japanese offers, is thus in order.

Grounds relied upon by petitioners

Petitioners assert, first, that the refusal of the government to disclose the documents
bearing on the JPEPA negotiations violates their right to information
on matters of public concern[13] and contravenes other constitutional provisions on
transparency, such as that on the policy of full public disclosure of all transactions
involving public interest.[14] Second, they contend that non-disclosure of the same
documents undermines their right to effective and reasonable participation in all levels
of social, political, and economic decision-making.[15] Lastly, they proffer that divulging
the contents of the JPEPA only after the agreement has been concluded will effectively
make the Senate into a mere rubber stamp of the Executive, in violation of the principle
of separation of powers.

Significantly, the grounds relied upon by petitioners for the disclosure of the latest
text of the JPEPA are, except for the last, the same as those cited for the disclosure of
the Philippine and Japanese offers.

The first two grounds relied upon by petitioners which bear on the merits of respondents
claim of privilege shall be discussed. The last, being purely speculatory given that the
Senate is still deliberating on the JPEPA, shall not.

The JPEPA is a matter of public concern

To be covered by the right to information, the information sought must meet the
threshold requirement that it be a matter of public concern. Apropos is the teaching
of Legaspi v. Civil Service Commission:

In determining whether or not a particular information is of public concern

there is no rigid test which can be applied. Public concern like public
interest is a term that eludes exact definition. Both terms embrace a broad
spectrum of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the
courts to determine on a case by case basis whether the matter at issue is
of interest or importance, as it relates to or affects the
public.[16] (Underscoring supplied)

From the nature of the JPEPA as an international trade agreement, it is evident that the
Philippine and Japanese offers submitted during the negotiations towards its execution
are matters of public concern. This, respondents do not dispute.They only claim that
diplomatic negotiations are covered by the doctrine of executive privilege, thus
constituting an exception to the right to information and the policy of full public
disclosure.
Respondents claim of privilege

It is well-established in jurisprudence that neither the right to information nor the policy
of full public disclosure is absolute, there being matters which, albeit of public concern
or public interest, are recognized as privileged in nature.The types of information which
may be considered privileged have been elucidated in Almonte v. Vasquez,[17] Chavez
v. PCGG,[18] Chavez v. Public Estates Authority,[19] and most recently in Senate
v. Ermita[20] where the Court reaffirmed the validity of the doctrine of executive privilege
in this jurisdiction and dwelt on its scope.

Whether a claim of executive privilege is valid depends on the ground invoked to justify
it and the context in which it is made.[21] In the present case, the ground for respondents
claim of privilege is set forth in their Comment, viz:

x x x The categories of information that may be considered privileged

includes matters of diplomatic character and under negotiation and
review. In this case, the privileged character of the diplomatic
negotiations has been categorically invoked and clearly explained by
respondents particularly respondent DTI Senior Undersecretary.

The documents on the proposed JPEPA as well as the text which is

subject to negotiations and legal review by the parties fall under the
exceptions to the right of access to information on matters of public
concern and policy of public disclosure. They come within the coverage of
executive privilege. At the time when the Committee was requesting for
copies of such documents, the negotiations were ongoing as they are still
now and the text of the proposed JPEPA is still uncertain and subject to
change.Considering the status and nature of such documents then and
now, these are evidently covered by executive privilege consistent with
existing legal provisions and settled jurisprudence.

Practical and strategic considerations likewise counsel against the

disclosure of the rolling texts which may undergo radical change or
portions of which may be totally abandoned. Furthermore,
the negotiations of the representatives of the Philippines as well as
of Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and
working drafts of opinions are accorded strict
confidentiality.[22] (Emphasis and underscoring supplied)
The ground relied upon by respondents is thus not simply that the information sought
involves a diplomatic matter, but that it pertains to diplomatic negotiations then in
progress.

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in this

jurisdiction. In discussing valid limitations on the right to information, the Court
in Chavez v. PCGG held that information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest.[23] Even earlier, the same privilege was
upheld in Peoples Movement for Press Freedom (PMPF) v. Manglapus[24] wherein the
Court discussed the reasons for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the
Presidents representatives on the state of the then on-going negotiations of the RP-US
Military Bases Agreement.[25] The Court denied the petition, stressing that secrecy of
negotiations with foreign countries is not violative of the constitutional provisions of
freedom of speech or of the press nor of the freedom of access to information. The
Resolution went on to state, thus:

The nature of diplomacy requires centralization of authority and

expedition of decision which are inherent in executive
action. Another essential characteristic of diplomacy is its
confidential nature. Although much has been said about open and secret
diplomacy, with disparagement of the latter, Secretaries of State Hughes
and Stimson have clearly analyzed and justified the practice. In the words
of Mr. Stimson:

A complicated negotiation . . . cannot be carried through

without many, many private talks and discussion, man
to man; many tentative suggestions and
proposals. Delegates from other countries come and tell
you in confidence of their troubles at home and of their
differences with other countries and with other
delegates; they tell you of what they would do under
certain circumstances and would not do under other
circumstances. . . If these reports . . . should become
public . . . who would ever trust American Delegations in
 another conference? (United States Department of State,
Press Releases, June 7, 1930, pp. 282-284.).

xxxx

There is frequent criticism of the secrecy in which negotiation with

foreign powers on nearly all subjects is concerned.This, it is claimed,
is incompatible with the substance of democracy. As expressed by
one writer, It can be said that there is no more rigid system of silence
anywhere in the world. (E.J. Young, Looking Behind the Censorship, J.
B. Lippincott Co., 1938)President Wilson in starting his efforts for the
conclusion of the World War declared that we must have open covenants,
openly arrived at. He quickly abandoned his thought.

No one who has studied the question believes that such a method of
publicity is possible. In the moment that negotiations are started,
pressure groups attempt to muscle in. An ill-timed speech by one of
the parties or a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to widespread
propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for
discussion before it is approved. (The New American Government and
Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-
Wright Export Corp.[26] that the President is the sole organ of the nation in its
negotiations with foreign countries, viz:

x x x In this vast external realm, with its important, complicated, delicate

and manifold problems, the President alone has the power to speak or
listen as a representative of the nation. He makes treaties with the advice
and consent of the Senate; but he alone negotiates. Into the field of
negotiation the Senate cannot intrude; and Congress itself is powerless to
invade it. As Marshall said in his great argument of March 7, 1800, in the
House of Representatives, The President is the sole organ of the
nation in its external relations, and its sole representative with
foreign nations. Annals, 6th Cong., col. 613. . . (Emphasis supplied;
underscoring in the original)

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text
of the JPEPA may not be kept perpetually confidential since there should be ample
opportunity for discussion before [a treaty] is approved the offersexchanged by the
parties during the negotiations continue to be privileged even after the JPEPA is
published. It is reasonable to conclude that the Japanese representatives submitted
their offers with the understanding that historic confidentiality[27] would govern the
same. Disclosing these offers could impair the ability of the Philippines to deal not only
with Japan but with other foreign governments in future negotiations.

A ruling that Philippine offers in treaty negotiations should now be open to public
scrutiny would discourage future Philippine representatives from frankly expressing their
views during negotiations. While, on first impression, it appears wise to deter Philippine
representatives from entering into compromises, it bears noting that treaty negotiations,
or any negotiation for that matter, normally involve a process of quid pro quo,
and oftentimes negotiators have to be willing to grant concessions in an area of
lesser importance in order to obtain more favorable terms in an area of greater
national interest. Apropos are the following observations of Benjamin S. Duval, Jr.:

x x x [T]hose involved in the practice of negotiations appear to be in

agreement that publicity leads to grandstanding, tends to freeze
negotiating positions, and inhibits the give-and-take essential to
successful negotiation. As Sissela Bokpoints out, if negotiators have
more to gain from being approved by their own sides than by making a
reasoned agreement with competitors or adversaries, then they are
inclined to 'play to the gallery . . .'' In fact, the public reaction may leave
them little option. It would be a brave, or foolish, Arab leader who
expressed publicly a willingness for peace with Israel that did not involve
the return of the entire West Bank, or Israeli leader who stated publicly a
willingness to remove Israel's existing settlements from Judea and
Samaria in return for peace.[28] (Emphasis supplied)

Indeed, by hampering the ability of our representatives to compromise, we may

be jeopardizing higher national goals for the sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the
JPEPA negotiations constituting no exception. It bears emphasis, however, that such
privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of
information as privileged does not mean that it will be considered privileged in all
instances. Only after a consideration of the context in which the claim is made may it be
determined if there is a public interest that calls for the disclosure of the desired
information, strong enough to overcome its traditionally privileged status.
Whether petitioners have established the presence of such a public interest shall be
discussed later. For now, the Court shall first pass upon the arguments raised by
petitioners against the application of PMPF v. Manglapus to the present case.

Arguments proffered by petitioners against the application of PMPF v. Manglapus

Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present
case, there being substantial factual distinctions between the two.

To petitioners, the first and most fundamental distinction lies in the nature of the
treaty involved. They stress that PMPF v. Manglapus involved the Military Bases
Agreement which necessarily pertained to matters affecting national security; whereas
the present case involves an economic treaty that seeks to regulate trade and
commerce between the Philippines and Japan, matters which, unlike those covered by
the Military Bases Agreement, are not so vital to national security to disallow their
disclosure.

Petitioners argument betrays a faulty assumption that information, to be considered

privileged, must involve national security. The recognition in Senate v. Ermita[29] that
executive privilege has encompassed claims of varying kinds, such that it may even be
more accurate to speak of executive privileges, cautions against such generalization.

While there certainly are privileges grounded on the necessity of safeguarding national
security such as those involving military secrets, not all are founded thereon. One
example is the informers privilege, or the privilege of the Government not to disclose
the identity of a person or persons who furnish information of violations of law to officers
charged with the enforcement of that law.[30] The suspect involved need not be so
notorious as to be a threat to national security for this privilege to apply in any given
instance. Otherwise, the privilege would be inapplicable in all but the most high-profile
cases, in which case not only would this be contrary to long-standing practice. It would
also be highly prejudicial to law enforcement efforts in general.
Also illustrative is the privilege accorded to presidential communications, which are
presumed privileged without distinguishing between those which involve matters of
national security and those which do not, the rationale for the privilege being that

x x x [a] frank exchange of exploratory ideas and assessments, free from

the glare of publicity and pressure by interested parties, is essential to
protect the independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial power. x x x[31] (Emphasis
supplied)

In the same way that the privilege for judicial deliberations does not depend on the
nature of the case deliberated upon, so presidential communications are privileged
whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential communications
is not absolute, one significant qualification being that the Executive cannot, any more
than the other branches of government, invoke a general confidentiality privilege
to shield its officials and employees from investigations by the proper governmental
institutions into possible criminal wrongdoing. [32] This qualification applies whether
the privilege is being invoked in the context of a judicial trial or a congressional
investigation conducted in aid of legislation.[33]

Closely related to the presidential communications privilege is the deliberative process

privilege recognized in the United States. As discussed by the U.S. Supreme Court
in NLRB v. Sears, Roebuck & Co,[34] deliberative process covers documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated. Notably, the privileged
status of such documents rests, not on the need to protect national security but, on
the obvious realization that officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page news, the objective of the
privilege being to enhance the quality of agency decisions. [35]

The diplomatic negotiations privilege bears a close resemblance to the deliberative

process and presidential communications privilege. It may be readily perceived that the
rationale for the confidential character of diplomatic negotiations, deliberative process,
and presidential communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the privilege for diplomatic
negotiations is meant to encourage a frank exchange of exploratory ideas between the
negotiating parties by shielding such negotiations from public view. Similar to the
privilege for presidential communications, the diplomatic negotiations privilege seeks,
through the same means, to protect the independence in decision-making of the
President, particularly in its capacity as the sole organ of the nation in its external
relations, and its sole representative with foreign nations. And, as with the deliberative
process privilege, the privilege accorded to diplomatic negotiations arises, not on
account of the content of the information per se, but because the information is part of a
process of deliberation which, in pursuit of the public interest, must be presumed
confidential.

The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v.
Department of the Treasury[37]enlightens on the close relation between diplomatic
negotiations and deliberative process privileges. The plaintiffs in that case sought
access to notes taken by a member of the U.S. negotiating team during the U.S.-
French tax treatynegotiations. Among the points noted therein were the issues to be
discussed, positions which the French and U.S. teams took on some points, the draft
language agreed on, and articles which needed to be amended. Upholding the
confidentiality of those notes, Judge Green ruled, thus:

Negotiations between two countries to draft a treaty represent a true

example of a deliberative process. Much give-and-take must occur
for the countries to reach an accord. A description of the negotiations at
any one point would not provide an onlooker a summary of the
discussions which could later be relied on as law. It would not be working
law as the points discussed and positions agreed on would be subject to
change at any date until the treaty was signed by the President and
ratified by the Senate.

The policies behind the deliberative process privilege support non-

disclosure. Much harm could accrue to the negotiations process if
these notes were revealed. Exposure of the pre-agreement positions
of the French negotiators might well offend foreign governments and
would lead to less candor by the U. S. in recording the events of the
negotiations process. As several months pass in between negotiations,
this lack of record could hinder readily the U. S.negotiating team. Further
disclosure would reveal prematurely adopted policies. If these policies
should be changed, public confusion would result easily.
 Finally, releasing these snapshot views of the negotiations would be
comparable to releasing drafts of the treaty, particularly when the
notes state the tentative provisions and language agreed on. As
drafts of regulations typically are protected by the deliberative
process privilege, Arthur Andersen & Co. v. Internal Revenue Service,
C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be
accorded the same protection. (Emphasis and underscoring supplied)

Clearly, the privilege accorded to diplomatic negotiations follows as a logical

consequence from the privileged character of the deliberative process.

The Court is not unaware that in Center for International Environmental Law (CIEL), et
al. v. Office of U.S. TradeRepresentative[38] where the plaintiffs sought information
relating to the just-completed negotiation of a United States-Chile Free Trade
Agreement the same district court, this time under Judge Friedman, consciously
refrained from applying the doctrine in Fulbright and ordered the disclosure of the
information being sought.

Since the factual milieu in CIEL seemed to call for the straight application of the
doctrine in Fulbright, a discussion of why the district court did not apply the same would
help illumine this Courts own reasons for deciding the present case along the lines
of Fulbright.

In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding
information, namely, Exemption 5 of the Freedom of Information Act (FOIA).[39] In order
to qualify for protection under Exemption 5, a document must satisfy two conditions: (1)
it must be either inter-agency or intra-agency in nature, and (2) it must be both pre-
decisional and part of the agency's deliberative or decision-making process.[40]

Judge Friedman, in CIEL, himself cognizant of a superficial similarity of context

between the two cases, based his decision on what he perceived to be a significant
distinction: he found the negotiators notes that were sought in Fulbright to be clearly
internal, whereas the documents being sought in CIEL were those produced by or
exchanged with an outside party, i.e. Chile. The documents subject of Fulbright being
clearly internal in character, the question of disclosure therein turned not on the
threshold requirement of Exemption 5 that the document be inter-agency, but on
whether the documents were part of the agency's pre-decisional deliberative process.
On this basis, Judge Friedman found that Judge Green's discussion [in Fulbright] of the
harm that could result from disclosure therefore is irrelevant, since the documents at
issue [in CIEL] are not inter-agency, and the Court does not reach the question of
deliberative process. (Emphasis supplied)

In fine, Fulbright was not overturned. The court in CIEL merely found the same to be
irrelevant in light of its distinct factual setting. Whether this conclusion was valid a
question on which this Court would not pass the ruling in Fulbrightthat
[n]egotiations between two countries to draft a treaty represent a true example of a
deliberative process was left standing, since the CIEL court explicitly stated that it did
not reach the question of deliberative process.

Going back to the present case, the Court recognizes that the information sought
by petitioners includes documents produced and communicated by a party external to
the Philippine government, namely, the Japanese representatives in the JPEPA
negotiations, and to that extent this case is closer to the factual circumstances
of CIEL than those of Fulbright.

Nonetheless, for reasons which shall be discussed shortly, this Court echoes the
principle articulated in Fulbright that the public policy underlying the deliberative
process privilege requires that diplomatic negotiations should also be accorded
privileged status, even if the documents subject of the present case cannot be
described as purely internal in character.
It need not be stressed that in CIEL, the court ordered the disclosure of information
based on its finding that the first requirement of FOIA Exemption 5 that the documents
be inter-agency was not met. In determining whether the government may validly
refuse disclosure of the exchanges between the U.S. and Chile, it necessarily had to
deal with this requirement, it being laid down by a statute binding on them.

In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any
statutory requirement similar to FOIA Exemption 5 in particular. Hence, Philippine
courts, when assessing a claim of privilege for diplomatic negotiations, are more free to
focus directly on the issue of whether the privilege being claimed is
indeed supported by public policy, without having to consider as the CIEL court did
if these negotiations fulfill a formal requirement of being inter-agency.Important though
that requirement may be in the context of domestic negotiations, it need not be
accorded the same significance when dealing with international negotiations.

There being a public policy supporting a privilege for diplomatic negotiations for the
reasons explained above, the Court sees no reason to modify, much less abandon, the
doctrine in PMPF v. Manglapus.

A second point petitioners proffer in their attempt to differentiate PMPF

v. Manglapus from the present case is the fact that the petitioners therein consisted
entirely of members of the mass media, while petitioners in the present case include
members of the House of Representatives who invoke their right to information not just
as citizens but as members of Congress.

Petitioners thus conclude that the present case involves the right of members of
Congress to demand information on negotiations of international trade agreements from
the Executive branch, a matter which was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the
mass media, it would be incorrect to claim that the doctrine laid down therein has no
bearing on a controversy such as the present, where the demand for information has
come from members of Congress, not only from private citizens.

The privileged character accorded to diplomatic negotiations does not ipso

facto lose all force and effect simply because the same privilege is now being
claimed under different circumstances. The probability of the claim succeeding in the
new context might differ, but to say that the privilege, as such, has no validity at all in
that context is another matter altogether.

The Courts statement in Senate v. Ermita that presidential refusals to furnish

information may be actuated by any of at least three distinct kinds of considerations
[state secrets privilege, informers privilege, and a generic privilege for internal
deliberations], and may be asserted, with differing degrees of success, in the context
of either judicial or legislative investigations,[41] implies that a privilege, once recognized,
may be invoked under different procedural settings. That this principle holds true
particularly with respect to diplomatic negotiations may be inferred from PMPF
v. Manglapusitself, where the Court held that it is the President alone who negotiates
treaties, and not even the Senate or the House of Representatives, unless asked, may
intrude upon that process.

Clearly, the privilege for diplomatic negotiations may be invoked not only against
citizens demands for information, but also in the context of legislative investigations.

Hence, the recognition granted in PMPF v. Manglapus to the privileged character of

diplomatic negotiations cannot be considered irrelevant in resolving the present case,
the contextual differences between the two cases notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in
this case, petitioners proffer that the socio-political and historical contexts of the two
cases are worlds apart. They claim that the constitutional traditions and concepts
prevailing at the time PMPF v. Manglapus came about, particularly the school of thought
that the requirements of foreign policy and the ideals of transparency were incompatible
with each other or the incompatibility hypothesis, while valid when international relations
were still governed by power, politics and wars, are no longer so in this age of
international cooperation.[42]
Without delving into petitioners assertions respecting the incompatibility hypothesis, the
Court notes that the ruling in PMPF v. Manglapus is grounded more on the nature of
treaty negotiations as such than on a particular socio-political school of thought. If
petitioners are suggesting that the nature of treaty negotiations have so changed that
[a]n ill-timed speech by one of the parties or a frank declaration of the concession which
are exacted or offered on both sides no longerlead[s] to widespread propaganda to
block the negotiations, or that parties in treaty negotiations no longer expect their
communications to be governed by historic confidentiality, the burden is on them to
substantiate the same. This petitioners failed to discharge.

Whether the privilege applies only at certain stages of the negotiation process

Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a reasonable
amount of confidentiality so as not to jeopardize the diplomatic process. They argue,
however, that the same is privileged only at certain stages of the negotiating process,
after which such information must necessarily be revealed to the public.[43] They add
that the duty to disclose this information was vested in the government when the
negotiations moved from the formulation and exploratory stage to the firming up of
definite propositions or official recommendations, citing Chavez v. PCGG[44] and Chavez
v. PEA.[45]

The following statement in Chavez v. PEA, however, suffices to show that the doctrine
in both that case and Chavez v. PCGG with regard to the duty to disclose definite
propositions of the government does not apply to diplomatic negotiations:

We rule, therefore, that the constitutional right to information includes

official information on on-going negotiations before a final contract. The
information, however, must constitute definite propositions by the
government and should not cover recognized exceptions like
privileged information, military and diplomatic secrets and similar
matters affecting national security and public
order. x x x[46] (Emphasis and underscoring supplied)

It follows from this ruling that even definite propositions of the government may not be
disclosed if they fall under recognized exceptions. The privilege for diplomatic
negotiations is clearly among the recognized exceptions, for the footnote to the
immediately quoted ruling cites PMPF v. Manglapus itself as an authority.

Whether there is sufficient public interest to overcome the claim of privilege

It being established that diplomatic negotiations enjoy a presumptive privilege against

disclosure, even against the demands of members of Congress for information, the
Court shall now determine whether petitioners have shown the existence of a public
interest sufficient to overcome the privilege in this instance.

To clarify, there are at least two kinds of public interest that must be taken into
account. One is the presumed public interest in favor of keeping the subject
information confidential, which is the reason for the privilege in the first place, and the
other is the public interest in favor of disclosure, the existence of which must be
shown by the party asking for information. [47]

The criteria to be employed in determining whether there is a sufficient public interest in

favor of disclosure may be gathered from cases such as U.S. v. Nixon,[48] Senate Select
Committee on Presidential Campaign Activities v. Nixon,[49] and In re Sealed Case.[50]

U.S. v. Nixon, which involved a claim of the presidential communications privilege

against the subpoena duces tecum of a district court in a criminal case, emphasized the
need to balance such claim of privilege against the constitutional duty of courts to
ensure a fair administration of criminal justice.

x x x the allowance of the privilege to withhold evidence that

is demonstrably relevant in a criminal trial would cut deeply into the
guarantee of due process of law and gravely impair the basic
function of the courts. A Presidents acknowledged need for
confidentiality in the communications of his office is general in
nature, whereas the constitutional need for production of relevant
evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of
justice. Without access to specific facts a criminal prosecution may be
totally frustrated. The Presidents broad interest in confidentiality of
communications will not be vitiated by disclosure of a limited number of
conversations preliminarily shown to have some bearing on the pending
criminal cases. (Emphasis, italics and underscoring supplied)
 Similarly, Senate Select Committee v. Nixon,[51] which involved a claim of the
presidential communications privilege against the subpoena duces tecum of a Senate
committee, spoke of the need to balance such claim with the duty of Congress to
perform its legislative functions.

The staged decisional structure established in Nixon v. Sirica was

designed to ensure that the President and those upon whom he directly
relies in the performance of his duties could continue to work under a
general assurance that their deliberations would remain confidential. So
long as the presumption that the public interest favors confidentiality
can be defeated only by a strong showing of need by another
institution of government- a showing that the responsibilities of that
institution cannot responsibly be fulfilled without access to records
of the President's deliberations- we believed in Nixon v. Sirica, and
continue to believe, that the effective functioning of the presidential office
will not be impaired. x x x

xxxx

The sufficiency of the Committee's showing of need has come to

depend, therefore, entirely on whether the subpoenaed materials
are critical to the performance of its legislative
functions. x x x (Emphasis and underscoring supplied)

In re Sealed Case[52] involved a claim of the deliberative process and presidential

communications privileges against a subpoena duces tecum of a grand jury. On the
claim of deliberative process privilege, the court stated:

The deliberative process privilege is a qualified privilege and can

be overcome by a sufficient showing of need. This need
determination is to be made flexibly on a case-by-case, ad hoc basis.
"[E]ach time [the deliberative process privilege] is asserted the district
court must undertake a fresh balancing of the competing interests," taking
into account factors such as "the relevance of the evidence," "the
availability of other evidence," "the seriousness of the litigation,"
"the role of the government," and the "possibility of future timidity by
government employees. x x x (Emphasis, italics and underscoring
supplied)
Petitioners have failed to present the strong and sufficient showing of need referred to in
the immediately cited cases. The arguments they proffer to establish their entitlement to
the subject documents fall short of this standard.

Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA
negotiation process effectively results in the bargaining away of their economic and
property rights without their knowledge and participation, in violation of the due process
clause of the Constitution. They claim, moreover, that it is essential for the people to
have access to the initial offers exchanged during the negotiations since only through
such disclosure can their constitutional right to effectively participate in decision-making
be brought to life in the context of international trade agreements.

Whether it can accurately be said that the Filipino people were not involved in the
JPEPA negotiations is a question of fact which this Court need not resolve. Suffice it to
state that respondents had presented documents purporting to show that public
consultations were conducted on the JPEPA. Parenthetically, petitioners consider these
alleged consultations as woefully selective and inadequate.[53]

AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine
and Japanese representatives have not been disclosed to the public, the Court shall
pass upon the issue of whether access to the documents bearing on them is, as
petitioners claim, essential to their right to participate in decision-making.

The case for petitioners has, of course, been immensely weakened by the disclosure of
the full text of the JPEPA to the public since September 11, 2006, even as it is still being
deliberated upon by the Senate and, therefore, not yet binding on the Philippines. Were
the Senate to concur with the validity of the JPEPA at this moment, there has already
been, in the words of PMPF v. Manglapus, ample opportunity for discussion before [the
treaty] is approved.

The text of the JPEPA having been published, petitioners have failed to convince this
Court that they will not be able to meaningfully exercise their right to participate in
decision-making unless the initial offers are also published.

It is of public knowledge that various non-government sectors and private citizens have
already publicly expressed their views on the JPEPA, their comments not being limited
to general observations thereon but on its specific provisions.Numerous articles and
statements critical of the JPEPA have been posted on the Internet.[54] Given these
developments, there is no basis for petitioners claim that access to the Philippine and
Japanese offers is essential to the exercise of their right to participate in decision-
making.

Petitioner-members of the House of Representatives additionally anchor their

claim to have a right to the subject documents on the basis of Congress inherent power
to regulate commerce, be it domestic or international. They allege that Congress cannot
meaningfully exercise the power to regulate international trade agreements such as the
JPEPA without being given copies of the initial offers exchanged during the negotiations
thereof. In the same vein, they argue that the President cannot exclude Congress from
the JPEPA negotiations since whatever power and authority the President has to
negotiate international trade agreements is derived only by delegation of Congress,
pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of
Presidential Decree No. 1464.[55]

The subject of Article VI Section 28(2) of the Constitution is not the power to
negotiate treaties and international agreements, but the power to fix tariff rates, import
and export quotas, and other taxes. Thus it provides:

(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it may
impose, tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts within the framework of
the national development program of the Government.

As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of

Article VII the article on the Executive Department which states:

No treaty or international agreement shall be valid and effective unless

concurred in by at least two-thirds of all the Members of the Senate.
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the
President, being the sole organ of the nation in its external relations, was echoed
in BAYAN v. Executive Secretary[56] where the Court held:

By constitutional fiat and by the intrinsic nature of his office, the

President, as head of State, is the sole organ and authority in the
external affairs of the country. In many ways, the President is the
chief architect of the nation's foreign policy; his "dominance in the
field of foreign relations is (then) conceded." Wielding vast powers
and influence, his conduct in the external affairs of the nation,
as Jefferson describes, is executive altogether.

As regards the power to enter into treaties or international

agreements, the Constitution vests the same in the President,subject
only to the concurrence of at least two thirds vote of all the members
of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the
President, in the lawful exercise of his vast executive and diplomatic
powers granted him no less than by the fundamental law itself. Into
the field of negotiation the Senate cannot intrude, and Congress
itself is powerless to invade it. x x x (Italics in the original; emphasis and
underscoring supplied)

The same doctrine was reiterated even more recently in Pimentel v. Executive
Secretary[57] where the Court ruled:

In our system of government, the President, being the head of state, is

regarded as the sole organ and authority in external relations and is
the country's sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the country's mouthpiece
with respect to international affairs. Hence, the President is vested with
the authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into treaties,
and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with
other states.

Nonetheless, while the President has the sole authority to negotiate

and enter into treaties, the Constitution provides a limitation to his
power by requiring the concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered into by him.
x x x (Emphasis and underscoring supplied)
While the power then to fix tariff rates and other taxes clearly belongs to Congress, and
is exercised by the President only by delegation of that body, it has long been
recognized that the power to enter into treaties is vested directly and exclusively in the
President, subject only to the concurrence of at least two-thirds of all the Members of
the Senate for the validity of the treaty. In this light, the authority of the President to
enter into trade agreements with foreign nations provided under P.D. 1464[58] may be
interpreted as an acknowledgment of a power already inherent in its office. It may not
be used as basis to hold the President or its representatives accountable to Congress
for the conduct of treaty negotiations.
This is not to say, of course, that the Presidents power to enter into treaties is unlimited
but for the requirement of Senate concurrence, since the President must still ensure that
all treaties will substantively conform to all the relevant provisions of the Constitution.

It follows from the above discussion that Congress, while possessing vast
legislative powers, may not interfere in the field of treaty negotiations. While Article VII,
Section 21 provides for Senate concurrence, such pertains only to the validity of the
treaty under consideration, not to the conduct of negotiations attendant to its
conclusion. Moreover, it is not even Congress as a whole that has
been given the authority to concur as a means of checking the treaty-making power of
the President, but only the Senate.

Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-
members of the House of Representatives fail to present a sufficient showing of
need that the information sought is critical to the performance of the functions of
Congress, functions that do not include treaty-negotiation.

Respondents alleged failure to timely claim executive privilege

On respondents invocation of executive privilege, petitioners find the same defective,

not having been done seasonably as it was raised only in their Comment to the present
petition and not during the House Committee hearings.
That respondents invoked the privilege for the first time only in their Comment to
the present petition does not mean that the claim of privilege should not be
credited. Petitioners position presupposes that an assertion of the privilege should have
been made during the House Committee investigations, failing which respondents are
deemed to have waived it.

When the House Committee and petitioner-Congressman Aguja requested respondents

for copies of the documents subject of this case, respondents replied that the
negotiations were still on-going and that the draft of the JPEPA would be released once
the text thereof is settled and complete. There was no intimation that the requested
copies are confidential in nature by reason of public policy. The response may not thus
be deemed a claim of privilege by the standards of Senate v. Ermita, which recognizes
as claims of privilege only those which are accompanied by precise and certain
reasons for preserving the confidentiality of the information being sought.

Respondents failure to claim the privilege during the House Committee hearings may
not, however, be construed as a waiver thereof by the Executive branch. As the
immediately preceding paragraph indicates, what respondents received from the House
Committee and petitioner-Congressman Aguja were mere requests for information. And
as priorly stated, the House Committee itself refrained from pursuing its earlier
resolution to issue a subpoena duces tecum on account of then Speaker Jose
de Venecias alleged request to Committee Chairperson Congressman Teves to hold
the same in abeyance.

While it is a salutary and noble practice for Congress to refrain from issuing subpoenas
to executive officials out of respect for their office until resort to it becomes necessary,
the fact remains that such requests are not a compulsory process. Being mere
requests, they do not strictly call for an assertion of executive privilege.
The privilege is an exemption to Congress power of inquiry.[59] So long as
Congress itself finds no cause to enforce such power, there is no strict necessity to
assert the privilege. In this light, respondents failure to invoke the privilege during the
House Committee investigations did not amount to a waiver thereof.

The Court observes, however, that the claim of privilege appearing in respondents
Comment to this petition fails to satisfy in full the requirement laid down in Senate
v. Ermita that the claim should be invoked by the President or through the Executive
Secretary by order of the President.[60] Respondents claim of privilege is being
sustained, however, its flaw notwithstanding, because of circumstances peculiar to the
case.
The assertion of executive privilege by the Executive Secretary, who is one of the
respondents herein, without him adding the phrase by order of the President, shall be
considered as partially complying with the requirement laid down in Senate
v. Ermita. The requirement that the phrase by order of the President should accompany
the Executive Secretarys claim of privilege is a new rule laid down for the first time
in Senate v. Ermita, which was not yet final and executory at the time respondents filed
their Comment to the petition.[61] A strict application of this requirement would thus be
unwarranted in this case.

Response to the Dissenting Opinion of the Chief Justice

We are aware that behind the dissent of the Chief Justice lies a genuine zeal to
protect our peoples right to information against any abuse of executive privilege. It is a
zeal that We fully share.

The Court, however, in its endeavor to guard against the abuse of executive
privilege, should be careful not to veer towards the opposite extreme, to the point that it
would strike down as invalid even a legitimate exercise thereof.

We respond only to the salient arguments of the Dissenting Opinion which have
not yet been sufficiently addressed above.

1. After its historical discussion on the allocation of power over international trade
agreements in the United States, the dissent concludes that it will be turning
somersaults with history to contend that the President is the sole organ for external
relations in that jurisdiction. With regard to this opinion, We make only the following
observations:

There is, at least, a core meaning of the phrase sole organ of the nation in its external
relations which is not being disputed, namely, that the power to directly negotiate
treaties and international agreements is vested by our Constitution only in the
Executive. Thus, the dissent states that Congress has the power to regulate commerce
with foreign nations but does not have the power to negotiate international
agreements directly.[62]
 What is disputed is how this principle applies to the case at bar.

The dissent opines that petitioner-members of the House of Representatives, by asking

for the subject JPEPA documents, are not seeking to directly participate in the
negotiations of the JPEPA, hence, they cannot be prevented from gaining access to
these documents.

On the other hand, We hold that this is one occasion where the following ruling
in Agan v. PIATCO[63] and in other cases both before and since should be applied:

This Court has long and consistently adhered to the legal maxim that
those that cannot be done directly cannot be done indirectly. To
declare the PIATCO contracts valid despite the clear statutory prohibition
against a direct government guarantee would not only make a mockery
of what the BOT Law seeks to prevent -- which is to expose the
government to the risk of incurring a monetary obligation resulting from a
contract of loan between the project proponent and its lenders and to
which the Government is not a party to -- but would also render the BOT
Law useless for what it seeks to achieve - to make use of the resources
of the private sector in the financing, operation and maintenance of
infrastructure and development projects which are necessary for national
growth and development but which the government, unfortunately, could
ill-afford to finance at this point in time.[64]

Similarly, while herein petitioners-members of the House of Representatives may not

have been aiming to participate in the negotiations directly, opening the JPEPA
negotiations to their scrutiny even to the point of giving them access to the offers
exchanged between the Japanese and Philippine delegations would have made a
mockery of what the Constitution sought to prevent and rendered it useless for what it
sought to achieve when it vested the power of direct negotiation solely with the
President.

What the U.S. Constitution sought to prevent and aimed to achieve in defining the
treaty-making power of the President, which our Constitution similarly defines, may be
gathered from Hamiltons explanation of why the U.S. Constitution excludes the House
of Representatives from the treaty-making process:
 x x x The fluctuating, and taking its future increase into account, the
multitudinous composition of that body, forbid us to expect in it those
qualities which are essential to the proper execution of such a
trust. Accurate and comprehensive knowledge of foreign politics; a steady
and systematic adherence to the same views; a nice and uniform
sensibility to national character, decision,secrecy and dispatch; are
incompatible with a body so variable and so numerous. The very
complication of the business by introducing a necessity of the concurrence
of so many different bodies, would of itself afford a solid objection. The
greater frequency of the calls upon the house of representatives, and the
greater length of time which it would often be necessary to keep them
together when convened, to obtain their sanction in the progressive stages
of a treaty, would be source of so great inconvenience and expense, as
alone ought to condemn the project.[65]

These considerations a fortiori apply in this jurisdiction, since the Philippine

Constitution, unlike that of the U.S., does not even grant the Senate the power to
advise the Executive in the making of treaties, but only vests in that body the power to
concur in the validity of the treaty after negotiations have been concluded.[66] Much less,
therefore, should it be inferred that the House of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access to the
subject JPEPA documents would set a precedent for future negotiations, leading to the
contravention of the public interests articulated above which the Constitution sought to
protect, the subject documents should not be disclosed.

2. The dissent also asserts that respondents can no longer claim the diplomatic
secrets privilege over the subject JPEPA documents now that negotiations have been
concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of
Sec. Ermita, and later in their Comment, necessarily apply only for as long as the
negotiations were still pending;

In their Comment, respondents contend that the negotiations of the

representatives of the Philippines as well as of Japan must be allowed to explore
alternatives in the course of the negotiations in the same manner as judicial
deliberations and working drafts of opinions are accorded strict confidentiality. That
respondents liken the documents involved in the JPEPA negotiations to judicial
deliberations and working drafts of opinions evinces, by itself, that they were
claiming confidentiality not only until, but even after, the conclusion of the
negotiations.
Judicial deliberations do not lose their confidential character once a decision has been
promulgated by the courts. The same holds true with respect to working drafts of
opinions, which are comparable to intra-agency recommendations.Such intra-agency
recommendations are privileged even after the position under consideration by the
agency has developed into a definite proposition, hence, the rule in this jurisdiction that
agencies have the duty to disclose only definite propositions, and not the inter-agency
and intra-agency communications during the stage when common assertions are still
being formulated.[67]

3. The dissent claims that petitioner-members of the House of Representatives

have sufficiently shown their need for the same documents to overcome the
privilege. Again, We disagree.

The House Committee that initiated the investigations on the JPEPA did not pursue its
earlier intention to subpoena the documents. This strongly undermines the assertion
that access to the same documents by the House Committee is critical to the
performance of its legislative functions. If the documents were indeed critical, the House
Committee should have, at the very least, issued a subpoena duces tecum or, like what
the Senate did in Senate v. Ermita, filed the present petition as a legislative body, rather
than leaving it to the discretion of individual Congressmen whether to pursue an action
or not. Such acts would have served as strong indicia that Congress itself finds the
subject information to be critical to its legislative functions.

Further, given that respondents have claimed executive privilege, petitioner-members of

the House of Representatives should have, at least, shown how its lack of access to the
Philippine and Japanese offers would hinder the intelligent crafting of
legislation. Mere assertion that the JPEPA covers a subject matter over which
Congress has the power to legislate would not suffice. As Senate Select Committee
v. Nixon[68] held, the showing required to overcome the presumption favoring
confidentiality turns, not only on the nature and appropriateness of the function in the
performance of which the material was sought, but also the degree to which the material
was necessary to its fulfillment. This petitioners failed to do.

Furthermore, from the time the final text of the JPEPA including its annexes and
attachments was published, petitioner-members of the House of Representatives have
been free to use it for any legislative purpose they may see fit. Since such publication,
petitioners need, if any, specifically for the Philippine and Japanese offers leading to the
final version of the JPEPA, has become even less apparent.

In asserting that the balance in this instance tilts in favor of disclosing the JPEPA
documents, the dissent contends that the Executive has failed to show how disclosing
them after the conclusion of negotiations would impair the performance of its
functions. The contention, with due respect, misplaces the onus probandi. While, in
keeping with the general presumption of transparency, the burden is initially on the
Executive to provide precise and certain reasons for upholding its claim of privilege,
once the Executive is able to show that the documents being sought are covered by a
recognized privilege, the burden shifts to the party seeking information to overcome the
privilege by a strong showing of need.

When it was thus established that the JPEPA documents are covered by the privilege
for diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose that
their disclosure would impair the performance of executive functions.It was then
incumbent on petitioner- requesting parties to show that they have a strong need for the
information sufficient to overcome the privilege. They have not, however.

4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming
the privilege by order of the President, the same may not be strictly applied to the
privilege claim subject of this case.

When the Court in Senate v. Ermita limited the power of invoking the privilege to the
President alone, it was laying down a new rule for which there is no counterpart even in
the United States from which the concept of executive privilege was adopted. As held in
the 2004 case of Judicial Watch, Inc. v. Department of Justice,[69] citing In re Sealed
Case,[70] the issue of whether a President must personally invoke the [presidential
communications] privilege remains an open question. U.S. v. Reynolds,[71] on the other
hand, held that [t]here must be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after actual personal consideration by
that officer.

The rule was thus laid down by this Court, not in adherence to any established
precedent, but with the aim of preventing the abuse of the privilege in light of its highly
exceptional nature. The Courts recognition that the Executive Secretary also bears the
power to invoke the privilege, provided he does so by order of the President, is meant to
avoid laying down too rigid a rule, the Court being aware that it was laying down a new
restriction on executive privilege. It is with the same spirit that the Court should not be
overly strict with applying the same rule in this peculiar instance, where the claim of
executive privilege occurred before the judgment in Senate v. Ermita became final.

5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent
implies that the Court therein erred in citing US v. Curtiss Wright[72] and the book
entitled The New American Government and Its Work[73] since these authorities, so the
dissent claims, may not be used to calibrate the importance of the right to information in
the Philippine setting.

The dissent argues that since Curtiss-Wright referred to a conflict between the
executive and legislative branches of government, the factual setting thereof was
different from that of PMPF v. Manglapus which involved a collision between
governmental power over the conduct of foreign affairs and the citizens right to
information.

That the Court could freely cite Curtiss-Wright a case that upholds the secrecy of
diplomatic negotiations against congressional demands for information in the course of
laying down a ruling on the public right to information only serves to underscore the
principle mentioned earlier that the privileged character accorded to diplomatic
negotiations does not ipso facto lose all force and effect simply because the same
privilege is now being claimed under different circumstances.

PMPF v. Manglapus indeed involved a demand for information from private citizens and
not an executive-legislative conflict, but so did Chavez v. PEA[74] which held that the
[publics] right to information . . . does not extend to matters recognized as privileged
information under the separation of powers. What counts as privileged information in an
executive-legislative conflict is thus also recognized as such in cases involving the
publics right to information.

Chavez v. PCGG[75] also involved the publics right to information, yet the Court
recognized as a valid limitation to that right the same privileged information based on
separation of powers closed-door Cabinet meetings, executive sessions of either house
of Congress, and the internal deliberations of the Supreme Court.

These cases show that the Court has always regarded claims of privilege, whether in
the context of an executive-legislative conflict or a citizens demand for information, as
closely intertwined, such that the principles applicable to one are also applicable to the
other.

The reason is obvious. If the validity of claims of privilege were to be assessed by

entirely different criteria in each context, this may give rise to the absurd
result where Congress would be denied access to a particular information because of a
claim of executive privilege, but the general public would have access to the same
information, the claim of privilege notwithstanding.

Absurdity would be the ultimate result if, for instance, the Court adopts the clear and
present danger test for the assessment of claims of privilege against citizens demands
for information. If executive information, when demanded by a citizen, is privileged only
when there is a clear and present danger of a substantive evil that the State has a right
to prevent, it would be very difficult for the Executive to establish the validity of its claim
in each instance. In contrast, if the demand comes from Congress, the Executive merely
has to show that the information is covered by a recognized privilege in order to shift the
burden on Congress to present a strong showing of need. This would lead to a
situation where it would be more difficult for Congress to access executive
information than it would be for private citizens.

We maintain then that when the Executive has already shown that an information is
covered by executive privilege, the party demanding the information must present a
strong showing of need, whether that party is Congress or a private citizen.

The rule that the same showing of need test applies in both these contexts, however,
should not be construed as a denial of the importance of analyzing the context in which
an executive privilege controversy may happen to be placed. Rather, it affirms it, for it
means that the specific need being shown by the party seeking information in
every particular instance is highly significant in determining whether to uphold a claim of
privilege. This need is, precisely, part of the context in light of which every claim
of privilege should be assessed.
Since, as demonstrated above, there are common principles that should be applied to
executive privilege controversies across different contexts, the Court in PMPF
v. Manglapus did not err when it cited the Curtiss-Wright case.

The claim that the book cited in PMPF v. Manglapus entitled The New American
Government and Its Work could not have taken into account the expanded statutory
right to information in the FOIA assumes that the observations in that book in support of
the confidentiality of treaty negotiations would be different had it been written after the
FOIA. Such assumption is, with due respect, at best, speculative.

As to the claim in the dissent that [i]t is more doubtful if the same book be used to
calibrate the importance of the right of access to information in the Philippine setting
considering its elevation as a constitutional right, we submit that the elevation of such
right as a constitutional right did not set it free from the legitimate restrictions of
executive privilege which is itself constitutionally-based.[76] Hence, the comments in
that book which were cited in PMPF v. Manglapusremain valid doctrine.

6. The dissent further asserts that the Court has never used need as a test to uphold or
allow inroads into rights guaranteed under the Constitution. With due respect, we assert
otherwise. The Court has done so before, albeit without using the term need.

In executive privilege controversies, the requirement that parties present a sufficient

showing of need only means, in substance, that they should show a public interest in
favor of disclosure sufficient in degree to overcome the claim of privilege.[77] Verily, the
Court in such cases engages in a balancing of interests. Such a balancing of interests
is certainly not new in constitutional adjudication involving fundamental rights. Secretary
of Justice v. Lantion,[78] which was cited in the dissent, applied just such a test.

Given that the dissent has clarified that it does not seek to apply the clear and present
danger test to the present controversy, but the balancing test, there seems to be no
substantial dispute between the position laid down in this ponencia and that reflected in
the dissent as to what test to apply. It would appear that the only disagreement is on the
results of applying that test in this instance.
The dissent, nonetheless, maintains that it suffices that information is of public concern
for it to be covered by the right, regardless of the publics need for the information, and
that the same would hold true even if they simply want to know it because it interests
them. As has been stated earlier, however, there is no dispute that the information
subject of this case is a matter of public concern. The Court has earlier concluded that it
is a matter of public concern, not on the basis of any specific need shown by petitioners,
but from the very nature of the JPEPA as an international trade agreement.

However, when the Executive has as in this case invoked the privilege, and it has been
established that the subject information is indeed covered by the privilege being
claimed, can a party overcome the same by merely asserting that the information being
demanded is a matter of public concern, without any further showing required? Certainly
not, for that would render the doctrine of executive privilege of no force and effect
whatsoever as a limitation on the right to information, because then the sole test in such
controversies would be whether an information is a matter of public concern.

Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing
the documents of the JPEPA negotiations, the Philippine government runs the grave
risk of betraying the trust reposed in it by the Japanese representatives, indeed, by the
Japanese government itself. How would the Philippine government then explain itself
when that happens? Surely, it cannot bear to say that it just had to release the
information because certain persons simply wanted to know it because it interests them.

Thus, the Court holds that, in determining whether an information is covered by

the right to information, a specific showing of need for such information is not a relevant
consideration, but only whether the same is a matter of public concern. When, however,
the government has claimed executive privilege, and it has established that the
information is indeed covered by the same, then the party demanding it, if it is to
overcome the privilege, must show that that the information is vital, not simply for the
satisfaction of its curiosity, but for its ability to effectively and reasonably participate in
social, political, and economic decision-making.[79]
7. The dissent maintains that [t]he treaty has thus entered the ultimate stage where the
people can exercise their right to participate in the discussion whether the Senate
should concur in its ratification or not. (Emphasis supplied) It adds that this right will be
diluted unless the people can have access to the subject JPEPA documents. What, to
the dissent, is a dilution of the right to participate in decision-making is, to Us, simply a
recognition of the qualified nature of the publics right to information. It is beyond dispute
that the right to information is not absolute and that the doctrine of executive privilege is
a recognized limitation on that right.

Moreover, contrary to the submission that the right to participate in decision-making

would be diluted, We reiterate that our people have been exercising their right to
participate in the discussion on the issue of the JPEPA, and they have been able to
articulate their different opinions without need of access to the JPEPA negotiation
documents.

Thus, we hold that the balance in this case tilts in favor of executive privilege.

8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select
Committee case, and In re Sealed Case, are similarly applicable to the present
controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was there
addressing only the Presidents assertion of privilege in the context of a criminal trial, not
a civil litigation nor a congressional demand for information. What this caveat means,
however, is only that courts must be careful not to hastily apply the ruling therein to
other contexts. It does not, however, absolutely mean that the principles applied in that
case may never be applied in such contexts.

Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of
executive privilege in contexts other than a criminal trial, as in the case of Nixon v.
Administrator of General Services[80] which involved former President Nixons invocation
of executive privilege to challenge the constitutionality of the Presidential Recordings
and Materials Preservation Act[81] and the above-mentioned In re Sealed Case which
involved a claim of privilege against a subpoena duces tecum issued in a grand jury
investigation.

Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the
other cases already mentioned, We are merely affirming what the Chief Justice stated in
his Dissenting Opinion in Neri v. Senate Committee on Accountability[82] a case
involving an executive-legislative conflict over executive privilege. That dissenting
opinion stated that, while Nixon was not concerned with the balance between the
Presidents generalized interest in confidentiality and congressional demands for
information, [n]onetheless the [U.S.] Court laid down principles and procedures
that can serve as torch lights to illumine us on the scope and use of Presidential
communication privilege in the case at bar.[83] While the Court was divided in Neri,
this opinion of the Chief Justice was not among the points of disagreement, and We
similarly hold now that the Nixon case is a useful guide in the proper resolution of the
present controversy, notwithstanding the difference in context.

Verily, while the Court should guard against the abuse of executive privilege, it
should also give full recognition to the validity of the privilege whenever it is
claimed within the proper bounds of executive power, as in this case.Otherwise,
the Court would undermine its own credibility, for it would be perceived as no longer
aiming to strike a balance, but seeking merely to water down executive privilege to the
point of irrelevance.

Conclusion

To recapitulate, petitioners demand to be furnished with a copy of the full text of the
JPEPA has become moot and academic, it having been made accessible to the public
since September 11, 2006. As for their demand for copies of the Philippine and
Japanese offers submitted during the JPEPA negotiations, the same must be denied,
respondents claim of executive privilege being valid.

Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF
v. Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction
and the reasons proffered by petitioners against the application of the ruling therein to
the present case have not persuaded the Court. Moreover, petitioners both private
citizens and members of the House of Representatives have failed to present
a sufficient showing of need to overcome the claim of privilege in this case.

That the privilege was asserted for the first time in respondents Comment to the present
petition, and not during the hearings of the House Special Committee on Globalization,
is of no moment, since it cannot be interpreted as a waiver of the privilege on the part of
the Executive branch.
 For reasons already explained, this Decision shall not be interpreted as departing
from the ruling in Senate v. Ermita that executive privilege should be invoked by the
President or through the Executive Secretary by order of the President.